The Scottish Information Commissioner and his team appear to have made some fundamental errors in law in interpreting some of the most basic aspects of the Freedom of Information(Scotland) Act 2002 (FOISA).
In a recent decision against the Scottish Information Commissioner, the Court of Session has clarified the meaning of the term "information" under FOISA and has defined who is an "applicant" under the legislation.
The Court held that the Commissioner had failed to comply with his duty to act fairly in reaching his decision and that, in the Glasgow City Council case, his decision was irrational.
MacRoberts requested from Glasgow and Dundee City Councils copies of statutory notices (copies of all notices served under various building and planning legislation since 17 February 2005) i.e. documents rather than the information contained within those documents.
Access to information
FOISA provides access to "information recorded in any form" and a distinction can be made between the information itself and the record in which it is contained, for example a document. FOISA provides a right of access to information, but this does not mean that an applicant has a right of access to the documentation in which the information is contained.
The Court took the view that where a request does not detail fully the information requested, but instead refers to the document within which the information can be found, as was the case in this instance, it is reasonable to take the view that it is the information and not the document itself which is relevant and should be provided.
The Court also considered the fact that MacRoberts was acting as an agent on behalf of Millar & Bryce, a private search company. It was held that the Scottish Information Commissioner had not taken this into account when coming to his decision.
Under FOISA, information will be exempt from disclosure if it can reasonably be obtained by the applicant other than by a request under the legislation (e.g. under a publication scheme). By ignoring MacRoberts’ status as an agent, the Commissioner failed to have regard to the fact that Millar & Bryce as a private search company could otherwise obtain all the information it requires from Property Enquiry Certificates and from searching public records. The Court held that certain provisions of FOISA make it necessary for the principal and not the agent to be regarded as the applicant.
The judge, Lord Reed, concluded that:1. The requests were invalid in that they were not requests for "information" within the meaning of the Act.
2. The requests were in addition invalid in that they did not disclose the name of the applicant, namely the second respondents.
3. The Commissioner erred in reaching his decisions on the basis that copies of statutory notices constituted "information" within the meaning of the Act.
4. The Commissioner erred in reaching his decision in the Glasgow case on the basis that a preference expressed by the applicant in terms of section 11 was relevant to the application of section 25.
5. We question whether, in any event, a request for copies of specified documents falls within the scope of section 11, but we do not require to express a concluded opinion on the point.
6. The Commissioner further erred, in relation to section 25, in failing to proceed on the basis that information which is made available in accordance with an authority's publication scheme, any payment required being specified in, or determined in accordance with, the scheme, is deemed to be reasonably obtainable.
7. The Commissioner further erred, in relation to section 25(1), in failing to take into consideration the nature and characteristics of the applicant.
8. The Commissioner failed to comply with his duty to act fairly in reaching his decisions, in relation to section 33(1)(b), in both the Glasgow case and the Dundee case.
9. The Commissioner's decision in the Glasgow case was, in addition, irrational in that it dealt with the contentions in respect of section 12 and section 25 on inconsistent bases.
Reports suggest that the Scottish Information Commissioner is considering an appeal to the Supreme Court.
- Opinion of the Court of Session (Court of Session website, 30 September 2009)
- Court of Session narrows the scope of Freedom of Information in Scotland (Dundas & Wilson website, 8 October 2009)
- Court of Session rules no right to request copies of documents under FOI(S)A (FOIA blog, 8 October 2009)